​Mediation misunderstood

By Geoff Thomas6 November 2017

I read with interest John Hyde’s ‘The mediation dilemma’. I retired from private practice in April to focus on my mediation practice. I have seen mediation from two perspectives – that of the solicitor advising his client and then as mediator. I am not sure that some lawyers see the process as flawed. Its benefits are well-publicised. Is it, perhaps, more a case of the mediator’s role in assisting the parties to resolve their difficulties that is not always understood?

Further, some might think that a mediation will not succeed unless whatever might conceivably be relevant has been disclosed/identified. By then the parties could be so entrenched in their positions, leaving aside the costs incurred, they may think a court should determine matters. To mediate against this background is not the easiest of tasks.

There is a case for imposing the opportunity to mediate on parties, but not before the issue of civil proceedings, and to leave it to a case management conference might be too late. Perhaps one answer is to impose a stay following service of the defence. When reporting to the court, the parties would be required to explain why mediation was not taken up, should that be so.

Nevertheless, provided the relevant protocol has been observed, parties should then have enough information/documentation enabling them meaningfully to attempt mediation. There is no reason to suppose it will not succeed. There will always be cases where parties attend simply to be able to ‘tick the mediation box’. Hopefully, however, such cases will become fewer.

Mediation is still comparatively new when compared with centuries of adversarial contests. The European Parliament recently adopted a resolution on the implementation of the mediation directive, recommending that member states step up efforts to encourage mediation in civil and commercial disputes. Whatever the outcome of Brexit negotiations, I hope this development will be taken to heart in the UK.

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